Scavetta v. Wechsler

Plaintiffs
appeal from the order of the Supreme Court, New York County
(Carol R. Edmead, J.), entered April 28, 2016, which granted
defendant's motion for summary judgment dismissing the
complaint, and denied plaintiffs' cross motion for
summary judgment on the issue of liability.

The
primary question raised in this appeal is whether a
negligence claim may be asserted against a defendant who
attached a dog's leash to an unsecured bicycle rack,
which was put into motion when the dog dragged it through the
streets and into the plaintiff, causing injury. We answer in
the negative, on constraint of the Court of Appeals'
Bard rule that " when harm is caused by a
domestic animal, its owner's liability is determined
solely by application of the rule'... of strict
liability for harm caused by a domestic animal whose owner
knows or should have known of the animal's vicious
propensities" (Petrone v Fernandez, 12 N.Y.3d
546, 550 [2009], quoting Bard v Jahnke, 6 N.Y.3d
592, 599 [2006]). Therefore, we must affirm the order of the
motion court, which, inter alia, granted defendant's
motion for summary judgment dismissing the complaint.

At the
same time, we take this opportunity to acknowledge
plaintiffs' persuasive argument that the Bard
rule may be neither prudent law nor prudent policy. As this
case illustrates, a plaintiff cannot recover for injuries
caused by a dog that has not demonstrated vicious
propensities, even when the injuries are proximately caused
by the owner's negligent conduct in controlling or
failing to control the dog. This rule immunizes careless
supervision of domestic animals by their owners and leaves
those harmed in the State of New York without recourse.

Facts
and Background

On
March 24, 2014, defendant was walking his dog on the way to
meet a friend at a pizzeria on Lexington Avenue between 93rd
and 94th Streets in Manhattan. Upon arriving at the
restaurant, he tied the 35-pound dog by its leash to a metal
bicycle rack, which weighed about five pounds and had
dimensions of approximately 3 feet by 3 feet by 2 feet. The
rack was of the sort to which cyclists or bicycle delivery
workers ordinarily lock their bicycles for security outside
of buildings.

Defendant
did not assure himself, however, that the rack was secured to
the ground or to anything else. As he reached the entrance of
the pizzeria, defendant heard the rack scraping against the
sidewalk and turned to see his dog running down the street,
pulling the rack with its leash. It appeared to defendant
that the dog started to follow him as he approached the
restaurant but was frightened by the noise of the rack
scraping against the sidewalk and began to run. The dog was
not chasing anything, but it was running "[v]ery
fast" and was "panicked." Defendant started
running after his dog, but was unable to catch up to it.

Meanwhile,
plaintiff Gregory Scavetta was on his way to work, walking
north on Lexington Avenue, and began to cross 93rd Street in
the crosswalk. As he crossed the street, Scavetta heard the
scraping of the rack and saw the dog running straight towards
him, dragging the rack behind it. The dog ran past Scavetta
and hid underneath a car. Scavetta then took one or two steps
toward the dog, to see if it was injured and whether he could
disconnect the rack from the leash, but the dog immediately
"sprung back out from underneath the car and took off
again." The dog ran back towards Scavetta, still
dragging the rack, which struck him. One of Scavetta's
legs got caught in the rack's crossbars, and, as the dog
continued to pull the rack, Scavetta was spun around so that
both of his feet went up in the air and he landed on his
back.

The dog
ran off toward Park Avenue. Defendant recovered the dog
approximately two hours later, after his dog walker found the
dog at Lexington Avenue and 86th Street. Scavetta was taken
to Mt. Sinai Hospital and treated for an injury to his left
leg.

Scavetta
and his wife commenced this action, alleging among other
things that defendant was negligent or reckless in tying his
dog to the unsecured bicycle rack, because he knew or should
have known that the dog could pull it. Plaintiffs did not
assert a cause of action sounding in strict liability, and
stated in their verified bill of particulars that "the
dog's viciousness is not an element of plaintiff[s']
cause of action."

Defendant
moved for summary judgment dismissing the complaint, arguing
among other things that New York State does not recognize
negligence as a cause of action for injuries caused by
domestic animals. Plaintiffs cross-moved for summary judgment
on the issue of liability, noting that they
"intentionally did not comment about strict liability in
their Bill of Particulars, " since the action "does
not involve vicious propensities of the dog." To the
contrary, plaintiffs argued, defendant is liable "for
negligently creating an extremely dangerous condition and
unreasonable risk of harm to others." Plaintiffs
explained that, "[b]y attaching the dog's eight-foot
leash to an unsecured, flimsy, light metal bicycle rack that
defendant knew, or should have known, the ...

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